♾️ follow Marie-Anne Frison-Roche on LinkedIn

♾️ subscribe to Newsletter MAFR Regulation, Compliance, Law 

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► Full Reference: M.-A. Frison-Roche "Monumental Goals, beating heart of Compliance Law", in M.-A. Frison-Roche, M.-A. (ed.), Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, 2023, p.

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🚧 read the bilingual Working Paper, with technical developments, references and links, basis of this article

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► Summary of this Article:  Compliance Law can be defined as the set of processes requiring companies to show that they comply with all the regulations that apply to them. It is also possible to define this branch of Law by a normative heart: the "Monumental Goals". These explain the technical new legal solutions, thus made them clearer, accessible and anticipable. This definition is also based on a bet, that of caring for others that human beings can have in common, a universality. 

Through the Monumental Goals, appears a definition of Compliance Law that is new, original, and specific. This new term "Compliance", even in non-English vocabulary, in fact designates a new ambition: that a systemic catastrophe shall not be repeated in the future. This Monumental Goal was designed by History, which gives it a different dimension in the United States and in Europe. But the heart is common in the West, because it is always about detecting and preventing what could produce a future systemic catastrophe, which falls under "negative monumental goals", even to act so that the future is positively different ("positive monumental goals"), the whole being articulated in the notion of "concern for others", the Monumental Goals thus unifying Compliance Law.

In this, they reveal and reinforce the always systemic nature of Compliance Law, as management of systemic risks and extension of Regulation Law, outside of any sector, which makes solutions available for non-sector spaces, in particular digital space. Because wanting to prevent the future (preventing evil from happening; making good happen) is by nature political, Compliance Law by nature concretizes ambitions of a political nature, in particular in its positive monumental goals, notably effective equality between human beings, including geographically distant or future human beings.

The practical consequences of this definition of Compliance Law by Monumental Goals are immense. A contrario, this makes it possible to avoid the excesses of a "conformity law" aimed at the effectiveness of all applicable regulations, a very dangerous perspective. This makes it possible to select effective Compliance Tools with regard to these goals, to grasp the spirit of the material without being locked into its flow of letters. This leads to not dissociating the power required of companies and the permanent supervision that the public authorities must exercise over them.

We can therefore expect a lot from such a definition of Compliance Law by its Monumental Goals. It engenders an alliance between the Political Power, legitimate to enact the Monumental Goals, and the crucial operators, in a position to concretize them and appointed because they are able to do so. It makes it possible to find global legal solutions for global systemic difficulties that are a priori insurmountable, particularly in climate matters and for the effective protection of people in the now digital world in which we live. It expresses values that can unite human beings.

In this, Compliance Law built on Monumental Goals is also a bet. Even if the requirement of "conformity" is articulated with this present conception of what Compliance Law is, this conception based on Monumental Law is based on the human ability to be free, while conformity law supposes more the human ability to obey.

Therefore, Compliance Law, defined by the Monumental Goals, is essential for our future, while conformity law is not.

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📘​See the general presentation of the book, Compliance Monumental Goals in which this article will be published

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► read the presentation of the other Marie-Anne Frison-Roche's contributions in this book:  

📝 Role and Place of Compagnies in the Creation and Effectiveness of Compliance Law in Crisis

📝Definition of Principe of Proportionality and Definition of Compliance Law,

📝 Assessment of Whistleblowing and the duty of Vigilance

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♾️ follow Marie-Anne Frison-Roche on LinkedIn

♾️ subscribe to the Newsletter MAFR Regulation, Compliance, Law 

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► Full Reference: M.-A. rison-Roche., "The Principle of Active Systemic Proximity, a corollary of the renewal of the Principle of Sovereignty by Compliance Law", in M.-A. Frison-Roche (ed.), Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published.

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🚧 read the Bilingual Working Paper, with technical developments, references and links, basis of this article.

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► Summary of this Article:  Surprisingly, it is often in a quarrelsome, angry, dissatisfied tone that we first speak of Compliance, especially when Compliance takes a legal form, because it is then we talk about sanctions coming from afar. These sanctions would strike both extremely hard and in an illegitimate way, Law only therefore takes its part in Compliance to increase its brutality: the Law is what would prolong the war between States to better hit this kind of civilian population that would be the companies..., in a new kind of "planetary total war"...

Why so much detestation, which can only be generated by such a presentation?

Because, thanks to the power of Law, Compliance would therefore be the means for a State, finally found, to meddle in the affairs of others to serve its own interests, including those of its companies, to go to war against other States and to the companies they care about without even having to formally declare the war to them. Compliance Law would finally allow a State that is not even a strategist, just smarter, to leave its territory to regulate others. It is true that it seems even more exasperating that it would also be under the guise of virtue and good purposes. Thus, it is not possible to count the number of the writings that describe and comment on the occurrences of the expression "Trojan horse", "economic war", etc. There are thus more articles on this subject of Compliance Law as a means of going to dictate to subjects of law who are nevertheless subject to other legal systems their behavior and to sanction them for having failed to do so, than on all other technical Compliance matters.

As soon as the term "extraterritoriality" is dropped, the knives are drawn. The dejection of defeat... because who can fight against American power, American Law seducing everyone? The call for resistance, or at the very least for "reaction"... In any case, it would be necessary to put the analysis back on its true terrain: politics, conquest, war, so leaving the legal technique there, area which would be good for the naive and above all count the divisions amassed on each side of the borders, then note that only the United States would have had the ingenuity to count many of them, with their armada of judges, prosecutors and lawyers, with Compliance Law amassed like so many gold coins since the 1930s, American companies relaying the assault by internalizing Compliance Law through internal codes, law that is "soft" only in name, and community standards governing the planet according to American principles, the solution then consisting of line up as many of them as possible in reaction, then attempt to "block" the assault. Because if there is no Global Law, Compliance Law would have succeeded in globalizing American Law.

The technique of blocking laws would therefore be the happy outcome on which the forces should concentrate to restore "sovereignty", since Europe had been invaded, by surprise by some famous texts (FCPA) and some cases whose evocation (BNP case) to the French ear sounds like a Waterloo. Compliance Law would therefore only be a morne plaine...

But is this how we should understand the notion of Sovereignty? Has the so-called question of "the extraterritoriality of Compliance Law" not been totally biased by the question, certainly important but with both very precise and extremely specific outlines, of embargoes which have almost not related to Compliance Law?

The first thing to do is therefore to see more clearly in this kind of fight of extraterritoriality, by isolating the question of embargoes from other objects which should not be assessed in the same way (I).

This done, it appears that where Compliance Law is required, it must be effectively indifferent to the territory: because Compliance Law intervenes where the territory, in the very concrete sense of the land in which we are anchor is not present in the situation to be governed, situation to which our minds have so much difficulty adapting and which, however, is now the most common situation: finance, space, digital. If we want the idea of ​​civilization to remain there, that the notion of "limit" be central there. However, Sovereignty is not linked to omnipotence, it is the grandchildren who believe that, it is on the contrary linked to the notion of limits (II).

But if the limit had been naturally given to human beings by the territory, the ground on which we walk and the border on which we stumble and which protects us from aggression, if the limit had been naturally given to human beings by death and the oblivion into which our body and our imagination eventually fall. Indeed, technology erases both natural limits. The Law was the very reflection of these limits, since it was built on the idea of ​​life and death, with this idea that, for example, we could no longer continue to live after our death. Digital technology could challenge this. In the same way, Law had in the same "natural" way reflected the terrestrial borders, since Public International Law being internal Public Law, took care that each sovereign subject remained in its terrestrial borders and did not go beyond, without the agreement of others, Public International Law organizing both the friendly reception of the other, by treaties and diplomacy, as well as unfriendly entry, by the Law of War, while  Private International Law welcomes foreign legal systems if a extraterritorial element is already present in the situation.

The complexity of the rules and the subtlety of the solutions do not modify the solidity of this base, always linking the Law to the material reality of this world which are our bodies, which appear and disappear and our "being" with them, and the earth squared by borders. Borders have always been crossed, International Commercial Law being only an economic and financial translation of this natural taste for travel which does not question the territory, human beings passing from one to another.

But the Global has arrived, not only in its opportunities, being not an issue because one can always give up the best, but also in global risks whose birth, development and result are not mastered and of which it is not relevant to thinking only of repairing the damage, because preventing risks from degenerating into a systemic catastrophe is what is at stake today. What if territory slips away and hubris seizes human beings who claim that technology could be the new wings leading a fortunate few to the sun of immortality? We could go towards a world that is both catastrophic and limitless, two qualifiers that classical philosophers considered identical.

Law being what brings measure, therefore limits in a world which, through technology, promises to some the deliverance of all these "natural" limits, could, by the new branch of Compliance Law, again inserting limits to a world which, without this contribution, would become disproportionate, some being able to dispose of others without any limit: in doing so, Compliance Law would then become an instrument of Sovereignty, in that it could impose limits, not by powerlessness but on the contrary by the force of Law. This explains why Compliance is so expressly linked to the political project of "Digital Sovereignty".

To renew this relationship between Law and Sovereignty, where the State takes a new place, we must think of new principles. A new principle is proposed here: the Principle of "Proximity", which must be inserted into the Ex-Ante and systemic Law that is Compliance Law. Thus inserted, the Principle of Proximity can be defined in a negative way, without resorting to the notion of territory, and in a positive way, to posit as being "close" what is close systemically, in the present and in the future, Compliance Law being a branch of Systemic Law having as its object the Future.

Thus, thinking in terms of Proximity consists of conceiving this notion as a Systemic Principle, which then renews the notion of Sovereignty and founds the action of entities in a position to act: Companies (III).

If we think of proximity not in a territorial way, the territory having a strong political dimension but not a systemic dimension, but if we think of systemic proximity in a concrete way through the direct effects of an object whose situation immediately impacts ours (as in the climatic space, or in the digital space), then the notion of territory is no longer primary, and we can do without it.

If the idea of ​​Humanism should finally have some reality, in the same way that a company donneuse d'ordre ("order giver") has a duty of Compliance regarding who works for it, this again meets the definition of Compliance Law as the protector of human beings who are close because they are internalized in the object consumers take. It is this legal technique that allows the transmission, with the thing sold, of the procedural right of action for contractual liability.

Therefore, a Principle of Active Systemic Proximity justifies the action of companies to intervene, in the same way that public authorities are then legitimate to supervise them in the indifference of the formal legal connection, principe of indifference already functioning in the digital space and in environmental and humanist vigilance.

It is therefore appropriate to no longer be hampered by what is a bad quarrel of the extraterritoriality of Compliance Law (I), to show the consubstantial Indifference to the territory of this new branch of Law (II) and to propose the formulation of a new Principle: the "Principle of Active Systemic Proximity (III).

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► See the general presentation of the book, 📘Compliance Monumental Goals, in which this article will be published

____

► read the presentations of the other Marie-Anne Frison-Roche's contributions in this book: 

📝Compliance Monumental Goals, beating heart of Compliance Law, 

📝Definition of Principe of Proportionality and Definition of Compliance Law,

📝 Assessment of Whistleblowing and the duty of Vigilance

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► Référence complète : M.-A. Frison-Roche, "Les Buts Monumentaux de la Compliance soutenus par les autorités publiques", in Revue Droit pénal de l'entreprise, La soirée de la Revue de Droit pénal de l'entreprise, Bruxelles, 15 mars 2023.

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► Full reference: M.-A. Frison-Roche, "Pourquoi le Droit de la Compliance ?" ("Why Compliance Law?"), in Roman Aydogdu et Hans De Wulf (dir.), Bruxelles, 15 march 2023. 

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🧮Read the full programme of this event

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► Full Reference: R.-O. Maistre,  "What monumental goals for the Regulator in a rapidly changing audiovisual and digital landscape?", ​in M.-A Frison-Roche (ed.), Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, 2023, p.

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► Article Summary (done by the JoRC editor):  In France, since the law of 1982 which put an end to the State monopoly on the audio-visual area, the landscape has profoundly evolved and diversified. In view of the multitude of players who are now established there, the Conseil supérieur de l'audiovisuel - CSA (French High Audiovisual Council) must ensure the economic balance of the sector and the respect for pluralism, in the interest of all audiences. The growing societal responsibilities of audiovisual media and new digital players have multiplied the "monumental goals" on which the Arcom is watching.

Its competences have gradually been extended to the digital space and the successive laws concerning its missions aim at new objectives, in particular in terms of protection of minors, fight against online hate or against disinformation. The emergence of a new European model of Regulation makes it possible to give substance to these additional goals, the Regulator adopting a systemic perspective and calling on soft law tools to fulfill its new missions.

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📘see the general presentation of the book, Compliance Monumental Goals, in which this article is published

________

♾️ follow Marie-Anne Frison-Roche on LinkedIn

♾️subscribe to the Newsletter MAFR Regulation, Compliance, Law 

____

► Full Reference: M.-A. Frison-Roche (ed.), Compliance Monumental Goals, series "Compliance and Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, 2023, 518 p.

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► This book in a few words: Seize Compliance by its mind: its Monumental Goals. The notion of "monumental goals" of Compliance was proposed in 2016 by Marie-Anne Frison-Roche📎!footnote-2828. It has become explicit in the texts and the resolution of cases, for example to fight against climate change, make human beings effectively equal, force to be extraterritorially vigilant about suppliers. 

Compliance Monumental Goals are targeted ex ante by regulations, contracts, CSR, and international treaties. Creating an alliance between business and political authorities, aiming for a new form of sovereignty. The presence in litigation of these Monumental Goals of global dimension renews the responsibilities and the Judge office. Describing and conceiving these Monumental Goals makes it possible to anticipate Compliance Law, which is more powerful every day.

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📕 In parallel, a book in French Les Buts Monumentaux de la Compliance, is published in the collection "Régulations & Compliance" co-published by the Journal of Regulation & Compliance (JoRC) and Dalloz. 

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📅 This book follows a cycle of colloquia 2021 organized by the Journal of Regulation & Compliance (JoRC) and its universities partners. 

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📚   This book is inserted in this series created by Marie-Anne Frison-Roche for developing Compliance Law.

📚   read the presentations of the other books of this Compliance Series: 

📘M.A. Frison-Roche (ed), Compliance Juridictionnalisation, 2022

📘M.-A. Frison-Roche (ed.), Compliance Tools, 2020

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► go to the general presentation of this 📚Series ​Compliance & Regulation, conceived, founded et managed by Marie-Anne Frison-Roche, co-published par the Journal of Regulation & Compliance (JoRC) and Bruylant. 

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► General construction of the book: 

The book opens with an Introduction, ​which proposes the Monumental Goals as definition of Compliance Law putting them at its "beating heart", giving this new branch of law its originality and specificity, explaining what, in the History of the United States and Europe, gave birth to this singular corpus and justifies a substantial definition of Compliance Law. The concept of Monumental Goals is explained, justifying both systemic and political nature of Compliance Law, the practical consequences of which legal specific rules are thus better identified and limited, since Compliance Law does not lead to all-obedience. We can then determine what we can expect from this Law of the Future that is Compliance Law.

From there, the book unfolds in 5 chapters.

A first chapter is devoted to the "radioscopy" of this notion, in itself and branch of Law by branch of Law.

A second chapter aims to measure how the Monumental Goals are questioned by a crisis situation, for example in a health situation, but not in that example, if they aggravate it and must be discarded, or if, on the contrary, they are exactly conceived for this hypothesis. of crisis, risks, catastrophes and that it is advisable to exploit them, in particular in order, in this "test", to benefit from the alliance between the political authorities, public powers and crucial operators.

Once made explicit and tested, the Monumental Goals must find a sure way to be taken into account. This is why a third chapter aims to measure in principle and in practice how the Proportionality method can help the integration of Compliance, thus giving a new dimension to the Law without dragging it into insecurity and illegitimate grabbing of powers.

But because Compliance Monumental Goals express a very great ambition, the question of a bearable, even beneficial relationship with the international competitiveness of companies, standards and systems must be opened. This is the object of the fourth chapter.  

Finally, because the Monumental Goals express by nature a new ambition of the Law in a world which must not give up in what could be the prospect of its abyss, the fifth chapter has for object the relationship between the Monumental Goals of Compliance and Sovereignty.

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► Table of Content :

INTRODUCTION

🕴️Frison-Roche, M.-A., 📝Compliance Monumental Goals, beating heart of Compliance Law

CHAPTER I. THE VERY IDEA OF MONUMENTAL GOALS, THE BEATING HEART OF COMPLIANCE LAW

🕴️Maistre, R.-O., 📝What monumental goals for the Regulator in a rapidly changing audiovisual and digital landscape? ;

🕴️Le Fur, A.-V., 📝Interest and “raison d’être” of the company: how do they fit with the Compliance Monumental Goals? ;;

🕴️Malaurie, M., 📝Monumental goals of Market Law. Reflection on the method

🕴️Peicuti, C. & 🕴️Beyssade, J.,📝The Feminization of Responsability positions in Companies as a Compliance Goal. Example of the banking sector

🕴️Petit, B., 📝The Arrangement of the Monumental Goals of Labor Law: a Moving and Often Paradoxical Whole

🕴️Vaquieri, J.-F.,📝 The "Monumental Goals" perceived by the company. The example of Enedis.

CHAPTER II. IMPLEMENTATION OF COMPLIANCE MONUMENTAL GOALS IN ARTICULATION OF THE MAJOR PRINCIPLE OF PROPORTIONALITY

🕴️Rapp, L., 📝Proportionality and Normativity

🕴️Bär-Bouyssière, B., 📝Practical obstacles to the effective place of Proportionality in Compliance

🕴️Meziani, L., 📝Proportionality in Compliance, the guarantee of public order in companies

🕴️Segonds, M., 📝Compliance, Proportionality and Sanction. The example of the sanctions taken by the French Anticorruption Agency 

🕴️Frison-Roche, M.-A., 📝Definition of Proportionality and Definition of Compliance

CHAPTER III. COMPLIANCE MONUMENTAL GOALS TESTED BY CRISIS SITUATIONS

🕴️Oumedjkane, A., 🕴️Tehrani, A. & Idoux, P., 📝Public Norms and Compliance in times of Crisis: Monumental Goals tested: Elements for a Problematic

🕴️Bonnet, J., 📝The Crisis, an opportunity to seize Compliance as a Mode of Communication by Public Authorities

🕴️Frison-Roche, M.-A., 📝Role and Place of Companies in the Creation and Effectiveness of Compliance Law in Crisis 

CHAPTER IV. EFFECTIVENESS OF COMPLIANCE MONUMENTAL GOALS AND INTERNATIONAL COMPETITIVENESS

🕴️Deffains, B., 📝The economic challenge of international competitiveness of Compliance

🕴️Marty, F., 📝The Case for Compliance Programs in International Competitiveness: A Competition Law and Economics Perspective

🕴️Frison-Roche, M.-A., 📝Assessment of Whistleblowing, and the obligation of Vigilance

CHAPTER V. COMPLIANCE SUPPORTED BY MONUMENTAL GOALS AND NEW WAY FO SOVEREIGNY

🕴️Bismuth, R., 📝Compliance and Sovereignty: ambiguous relationships

🕴️Pottier, S., 📝In favour of European compliance, a vehicle of economic and political assertion

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► Full Reference: M.-A. Frison-Roche, "Place and rôle of Companies in the Creation and Effectiveness of Compliance Law in situation of crisis", in M.-A. Frison-Roche (ed.), Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, 2023, p.

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► Article Summary:  This article has a very topic: the place of private Companies, regarding the chapter's issue: "the ordeal of a crisis". The crisis constitutes a "test", that is to say, it brings evidence. Let us take it as such.

Indeed, during the health crisis, Companies have helped the Public Authorities to resist the shock, to endure and to get out of the Crisis. They did so by force, but they also took initiatives in this direction. From this too, we must learn lessons for the next crisis that will come. It is possible that this has already started in the form of another global and systemic crisis: the environmental crisis. In view of what we have been able to observe and the evolution of the Law, of the standards adopted by the Authorities but also by the new case law, what can we expect from Companies in the face of this next Crisis, willingly and strength?

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🚧Read the bilingual Working Paper, with more developments, technical references, and hypertext links.

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📘go to the general presentation of the book, Compliance Monumental Goals, in which this article is published

____

► read the presentations of the other Marie-Anne Frison-Roche's contributions in this book: 

📝Compliance Monumental Goals, beating heart of Compliance Law, 

📝Definition of Principe of Proportionality and Definition of Compliance Law,

📝 Assessment of Whistleblowing and the duty of Vigilance

________

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♾️follow Marie-Anne Frison-Roche on LinkedIn

♾️subscribe to the Newsletter MAFR Regulation, Compliance, Law 

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► Full reference: M.-A. Frison-Roche, , F. Ancel, N. Roret, "Les juges vont être de plus en plus présents dans le droit de la compliance" ("Judges will be more and more involved in Compliance Law"), interview with Olivia Dufour, Actu-Juridique, 1st March 2023.

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💬read the interview (in French)

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► Presentation of the interview by the journal (in French) : "À l’instigation du professeur Marie-Anne Frison-Roche, l’École nationale de la magistrature (ENM) a proposé pour la première fois début février une formation en compliance à destination des magistrats et des avocats. François Ancel, conseiller la Cour de cassation, Nathalie Roret, avocate et directrice de l’ENM et Marie-Anne Frison-Roche plaident d’une seule voix pour le renforcement du rôle des acteurs judiciaires dans la compliance."

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► Questions asked (in French): 

• D’où est venue l’idée d’aborder ce droit en cours d’émergence qui semble encore très confidentiel ?

• En effet, on croit souvent savoir ce qu’est la compliance, en la confondant avec la conformité, pouvez-vous expliquer ce qui les distingue ?​​

• On constate, en lisant le programme de la formation, que toutes les branches du droit sont concernées par la compliance depuis le droit des sociétés jusqu’au pénal en passant par les contrats et la responsabilité. Pouvez-vous nous donner des exemples ?​

• Comment se redistribuent les rôles entre les avocats, les juges et les entreprises dans cette nouvelle configuration qu’est la compliance ?​

• En quoi est-ce important pour les magistrats d’appréhender ce nouvel univers ?​

• Ces transformations sont-elles cantonnées à la compliance ou peuvent-elles sortir de son champ ?​

• Par exemple qu’en est-il de la question très controversée du rôle de l’avocat à l’égard du juge ?​

• Avez-vous constaté lors de cette formation une amélioration du dialogue entre les différents acteurs ?​

• Cette formation va-t-elle être instituée de manière permanente dans la formation des magistrats et des avocats ? Une autre manifestation est-elle prévue ?

________

♾️follow Marie-Anne Frison-Roche on LinkedIn

♾️subscribe to the Newsletter MAFR Regulation, Compliance, Law 

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► Full reference: M.-A. Frison-Roche, "Les notaires "agents d'effectivité de la compliance"", interview with  Sarah Bertone, Solution Notaire Hebdo, 9 February 2023.

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💬read the interview (in French)

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► Presentation of the interview by the journal (in French): "Souvent envisagée comme un ensemble des processus visant à s’assurer du respect de certaines réglementations et/ou valeurs éthiques par les professionnels, la compliance est aujourd’hui encore mal appréhendée. Marie-Anne Frison-Roche, professeur de droit, spécialisée en droit de la régulation et de la compliance, nous explique en quoi le notariat trouve pourtant toute sa place dans cette démarche."

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► Questions asked (in French): 

• Quelle conception de la compliance doit-on adopter pour être efficace ? 

• En quoi ces organisations sont-elles clés ?

• Concrètement, puisque ces organisations anciennes se révèlent si adéquates, ont-elles besoin de s’adapter ?

• Ne faudrait-il pas que ces professions se modifient ?

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🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

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► Full Reference: M.-A. Frison-Roche, "Instaurer l'insécurité juridique comme principe, outil de prévention des crises systémiques catastrophiques totales" ("Establishing legal uncertainty as a principle and a tool for preventing total catastrophic systemic crises"), in G. Gerqueira, H. Fulchiron et N. Nord (eds.), Insécurité juridique : l'émergence d'une notion ?, Société de législation comparée, coll. "Colloques", vol. 53, 2023, pp. 153-167. 

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📝read the article (in French)

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🚧read the bilingual Working Papier which is the basis of the conference and this article

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🎤watch the conference of March 22, 2021 that took place in the Cour de cassation (French Court de cassation) and for which this reflection was globally led

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► English Summary of the article: "whatever it takes". In 2015, Mario Draghi used this formula to aim for the defence of the European currency, when the Euro was in danger of collapsing under the dance of the speculators who would be enriched by its collapse. Rarely has a formula been more violently political and more strongly prescriptive. It contributed to his being dubbed "Super Mario", as in the video game. The formula was used again in 2020 by the Président de la République Française (President of the French Republic) in the face of the financial turmoil caused by the health crisis that led to similar calculations. It goes beyond the mere "financial cost". With this formula, the President of the European Central Bank stated that the economic crisis in Europe was such that the institution would do everything in its power to put an end to it, without any limits; that all those who, by their behaviour, even supported by their legal prerogatives, in this case the speculators, because they were destroying the economic and financial system, would come up against this and would themselves be swept away by the Central Bank because the latter's mission, in that it is absolutely to safeguard the Euro itself, would prevail "quoi qu'il en coûte" ("whatever the cost"). At one point, the master stood up. If the royal position is the seated position, when he listens and judges, it is by rising that he shows his acceptance of also being the master, because he is in charge of more and will use everything to win.

More broadly, we might consider drawing up a positive concept of legal uncertainty (which is bound to please the Hegelians), increasing legal certainty: this would make it possible to associate a clearer legal regime with the hypotheses of legal uncertainty. Indeed, rather than sweeping Law under the carpet, which explains many of the tensions between the Conseil constitutionnel (French Constitutional Council) and the Conseil d'État (Council of State) on the one hand, and the legislator and the government on the other, concerning the "État d'urgence" ("State of emergency"), we could set out the conditions in which legal uncertainty makes it possible to set aside or limit rules.

The idea proposed is therefore that in "extraordinary situations", legal uncertainty would be a dimension, or even a principle which would be admissible. And developing this first point, it is proposed that the hypothesis of an "economic crisis" justifies a dimension, or even a principle of "legal uncertainty". But this first assertion needs to be tested. Is an economic crisis, a concept that needs to be defined, if it is to have such a major reversal effect, such an extraordinary 'situation'? Furthermore, to deal with this extraordinary situation constituted by an 'economic crisis', how much legal uncertainty would be legally acceptable, or even legally claimed? Could we even conceive of a reversal of principle that would bring applicable Law to an economic crisis under the aegis of legal uncertainty? In such a case, the question that then arises is to determine the conditions and criteria for emerging from the economic crisis, or even to determine the elements of perspective of an economic crisis, which could justify in advance the admission of an injection of legal uncertainty. Above all, Law has control over the future.

The economic crisis should therefore be legally defined as an exceptional situation, before stressing that Regulation and Compliance Law, because on the one hand we move from crisis to crisis and on the other hand the whole system aims to avoid and manage the future crisis in advance or to exclude it; this is particularly true of health and climate issues (the way the health crisis was managed was to 'decree' that the State should initiate an economic crisis), which means that legal insecurity is no longer seen as a distant exception, a failure to be combated, but as a lever that can be used to influence the future.

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► Full Reference: Ancel, F. & Frison-Roche, M.A., Droit de la compliance ("Compliance Law", French National School for the Judiciary (Ecole nationale de la magistrature - ENM), 

This teaching is given in French.

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► Presentation of the Teaching: The two-day session is designed for magistrates and practicing lawyers who are not necessarily specialized, to enable them, based on concrete cases, to understand the issues, objectives, and methods of compliance mechanisms in companies, including the increasing judicialization and the supranational dimension strengthen, modifying the office of the judge and the role of lawyers.

The analysis is made from the angle of Civil Law (contract, tort), Company Law, Labor Law and Criminal Law, but also governance, financial markets, regulatory, climate and digital issues.

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► Organisation of the Teaching: this teaching is open to all judicial members and lawyers. Enrollments are made at the French National School for the Judiciary.

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► Full Reference: O. Douvreleur, "Compliance et juge du droit" ("Compliance and Judge ruling only on points of Law"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 465-471. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance): Compliance maintains with the judge complex relations, and even more with the judge ruling only on points of Law  (in France, the Court de Cassation in the judicial order, the one who, in principle, does not know the facts that he leaves to the sovereign appreciation of the judges ruling on the substance of the disputes. At first glance, compliance is a technique internalised in companies and the place occupied by negotiated justice techniques leave little room for intervention by the judge ruling only on points of Law

However, his role is intended to develop, in particular with regard to the duty of vigilance or in the articulation between the different branches of Law when compliance meets Labor Law, or even in the adjustment between American Law and the other legal systems, especially French legal system. The way in which the principle of Proportionality will take place in Compliance Law is also a major issue for the judge ruling only on points of Law.

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► Full Reference: F.-X. Train, "Arbitrage et procédures parallèles exercées au titre de la compliance" ("Arbitration and parallel proceedings exercised in Compliance Procedure"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 355-368. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► The summary below describes the article that follows an intervention in the scientific manifestation Compliance et Arbitrage, co-organised by the Journal of Regulation & Compliance (JoRC) and the University Panthéon-Assas (Paris II). This conference was designed by Marie-Anne Frison-Roche and Jean-Baptiste Racine, scientific co-directors, and took place in Paris II University on March 31, 2021. 

In the book, the article will be published in the Chapter III, devoted to: Compliance et Arbitrage international.

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► Summary of the article (done by the Journal of Regulation & Compliance): Firstly, the article insists on the principle of the autonomy of the international arbitration procedure, in relation to which parallel procedures remain watertight, whether they are criminal or done under Compliance Law. In the arbitral proceedings taking place independently, the arbitrators before whom the facts also referred to in these parallel proceedings, in particular the facts of corruption, are alleged before them as facts through their unlawful nature: it is at this title that they can and must apprehend them, using the standard of proof which is the bundle of clues.

Secondly, the article highlights the limits of the autonomy of international arbitration. These may be de facto limits because in the search for evidence by arbitrators, red flags are often insufficiently consistent evidence to establish a sentence, especially since this sentence may be subject to control by the judge of its conformity to international public order, the annulment by the judge being able to be based on external elements, even after the arbitration procedure. It may then be wise for the arbitrators, who are not forced to do so, to suspend their proceedings to wait the results of the parallel proceedings initiated under Compliance Law, so that the procedures and their results could be harmonious.

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► Full Reference: J. Heymann, "La nature juridique de la "Cour suprême" de Facebook" ("The legal nature of Facebook's "Supreme court""), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 151-167. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► The summary below describes an article following the colloquium L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance , co-organized by the Journal of Regulation & Compliance (JoRC) and the Faculté de Droit Lyon 3. This manifestation was designed under the scientific direction of Marie-Anne Frison-Roche and Jean-Christophe Roda and took place in Lyon on June 23, 2021.

In the book, the article will be published in Title I, devoted to: The Entreprise instituted Judge and Prosecutor of itself by Compliance Law.

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► Summary of the article (done by the author): Taking place in the general theme aiming at making “words and things coincide”, the article offers some thoughts on the “conditions of the discourse” – in the sense in which Foucault understood it in his Archéologie des sciences humaines – relating to the phenomenon of “jurisdictionalization” of Compliance.

            The thoughts are more specifically focusing on the nature of the so-called “Supreme Court” that Facebook instituted to hear appeals of decisions relating to content on the digital social networks that are Facebook and Instagram. Is this really a “Supreme Court”, designed in order to “judge” the Facebook Group?

            A careful examination of the Oversight Board – i.e. the so-called “Supreme Court” created by Facebook – reveals that the latter, in addition to its advisory mission (which consists of issuing policy advisory opinions on Facebook’s content policies), exercises some form of adjudicative function. This is essentially conceived in terms of compliance assessment, of the content published on the social networks Facebook or Instagram with the standards issued by these corporations on the one hand, of content enforcement decisions taken by Facebook with the Law on the other hand. The legal framework of reference is yet rather vague, although its substantial content seems to be per se evolutive, based on the geographical realm where the case to be reviewed is located. An adjudicative function can therefore be characterized, even if the Oversight Board can only claim for a limited one.

            The author can ultimately identify the Oversight Board as a preventive dispute settlement body, in the sense that it seems to aim at avoiding any referral to state courts and ruling before any court’s judgement can be delivered. Some questions are thus to be raised, relating with both legitimacy and authority of such a Board. But whatever the answers will be, the fact remains that the creation of the Oversight Board by a private law company already reveals all the liveliness of contemporary legal pluralism.

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► Full reference: M.-A. Frison-Roche, co-organisation de la formation ENM Droit de la Compliance, co-organisé entre l'École nationale de la magistrature et le Journal of Regulation & Compliance (JoRC), les 2 et 3 février 2023. 

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► General presentation of the course: The two-day session is designed for magistrates and practicing lawyers who are not necessarily specialized, to enable them, based on concrete cases, to understand the issues, objectives, and methods of compliance mechanisms in companies, including the increasing judicialization and the supranational dimension strengthen, modifying the office of the judge and the role of lawyers.

The analysis is made from the angle of Civil Law (contract, tort), Company Law, Labor Law and Criminal Law, but also governance, financial markets, regulatory, climate and digital issues.

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► Brief bibliography: 

• M.-A. Frison-Roche (dir.), Compliance Jurisdictionalisation, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023.
• ​M.-A. Frison-Roche (dir.), Compliance Monumental Goals, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022.
• M.-A. Frison-Roche (dir.), Compliance Tools, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021.
• N. Borga, J.-Cl. Marin, J.-Ch. Roda (dir), Compliance : l'entreprise, le régulateur et le juge, coll. Régulations & Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, 2018.
• M.-A. Frison-Roche (dir.), Pour une Europe de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2019.
• M.-A. Frison-Roche (dir.), Régulation, Supervision, Compliance, coll. "Régulations", Journal of Regulation & Compliance (JoRC) and Dalloz, 2017.

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► Will speak: 

🎤François Ancel, Judge at the Première chambre civile de la Cour de cassation ( First civil chamber of the Court of Cassation)

🎤Guillaume Beaussonie, Professor at Toulouse 1 Capitole University 

🎤Jean-François Bohnert, Procureur national financier 

🎤Gilles Briatta, Group General Secretary of the Groupe Société Générale 

🎤Marie-Anne Frison-Roche, Director of the Journal of Regulation & Compliance (JoRC)

🎤Cécile Granier, senior lecturer at Jean-Moulin Lyon 3 University 

🎤Jean-Michel Hayat, Premier Président honoraire de la Cour d'appel de Paris

🎤Christophe Ingrain, Avocat à la Cour 

🎤Anne-Valérie Le Fur, Professor at Versailles Saint-Quentin-en-Yvelines University 

🎤Stanislas Pottier, Senior Advisor to the General Management of Amundi

🎤Jean-Baptiste Racine, Professeur à l'Université Panthéon-Assas (Paris II)

🎤Juliette Thery, Membre du Collège de l'Arcom

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Lire une présentation détaillée de la manifestation ci-dessous⤵️

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► Full Reference: M.-A. Frison-Roche, "Le juge, l'obligation de compliance et l'entreprise. Le système probatoire de la Compliance" ("The judge, the compliance obligation, and the company. The Compliance probationary system"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p 409-442.

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📝read the article (in French)

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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance): the article aims to identify the link that must be established between the company in its relationship with the compliance obligations it assumes and the judges to whom it is accountable in this respect: this link is established by evidence. The evidentiary system of proof has yet to be constructed, and it is the purpose of this long study to lay the groundwork. 

To this end, the article begins with a description of what is designated here as the "probatory square" in a "probatory system" that is superimposed on the system of rules of substantive legal system. This is all the more important because Compliance seems to be in frontal collision in its very principles with the general principles of the evidentiary system, in particular because it seems that the company would have to prove the existence of the Law or that it would have to bear in a definitive way the burden of proving the absence of violation, which seems to be contrary not only to the presumption of innocence but also to the principle of the freedom of action and of undertaking. In order to re-articulate Compliance Law, the obligations of compliance which legitimately weigh on the company, it is necessary to return to the probatory system specific to Compliance, so that it remains within the Rule of Law. This presupposes the adoption of a substantial definition of Compliance, which is not only compliance with the rules, which is only a minimal dimension, but implies that Compliance Law should be defined by the Monumental Goals on which the public authorities and the companies are in substantial alliance.

The evidentiary system of principle makes play between its four summits that are the burden of proof, the objects of proof this evidentiary square of principle, between the burden of proof, the means of proof and their admissibility. Compliance Law does not fall outside this evidential square, thus marking its full membership of the Rule of Law

In order to lay the foundations of the evidential system specific to Compliance Law, the first part of the article identifies the objects of proof which are specific to it, by distinguishing between the structural devices, on the one hand, and the expected behaviours, on the other. The first involves proving that the structures required to achieve the Monumental Goals of Compliance have actually been put in place. The object of proof is then the effectiveness of this implementation, which presents the effectiveness of the system. As far as behavioral obligations are concerned, the object of proof is the efforts made by the company to obtain them, the principle of proportionality governing the establishment of this proof, while the systemic efficiency of the whole reinforces the evidential system. However, the wisdom of evidence lies in the fact that, even though the principle remains that of freedom of evidence, the company must establish the effectiveness, efficiency, and effectiveness of the whole, independently of the burden of proof.

The second part of the article concerns those who bear the burden of proof in Compliance Law. The latter places the burden of proof on the company in principle, in view of its legal obligations. This burden comes from the legal origin of the obligations, which blocks the "round of the burden of proof". But in the interference of the different vertices of the evidentiary square, the question becomes more delicate when it comes to determining the contours of the compliance obligations that the company must perform. Moreover, the burden of proof may itself be the subject of proof, just as the company's performance of its legal obligations may also be the subject of contracts, which brings us back to the evidentiary system ordinarily applicable to contractual obligations. The situation is different when it comes to a "compliance contract" or when it comes to one or more compliance stipulations, concepts that are still not very well developed in Contract Law. 

Furthermore, as all branches of Law belong to a legal system governed by the Rule of Law, other branches of law interfere and modify the methods and solutions of proof. This is the case when the fact, which is the object of proof, can give rise to a sanction, the Law of repression imposing its own solutions in the matter of the burden of proof. 

In the third part of the article, the relevant means of proof in Compliance Law are examined, used in that Compliance Law is above all a branch of Law whose object is on the one hand information and on the other hand the Future. Open questions remain, such as whether companies could be forced by the Judge to build technologies to invent new means of proof. To show that they are indeed achieving the Monumental Goals they are charged with. 

In the fourth part, the vital character of the pre-constitution of evidence is shown, which is the reflection of the Ex-Ante nature of Compliance Law: evidence must be pre-constituted to avoid the very prospect of having to use it, by finding all the means to establish the effectiveness, efficiency and even the effectiveness of the various Compliance Tools. 

If companies do all this methodically, the Compliance evidence system will be established, in harmony with the general evidence system, Compliance Law and the Rule of Law.

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► Full Reference: A. Bavitot, "Le façonnage de l'entreprise par les accords de justice pénale négociée" ("Shaping the company through negotiated Criminal Justice Agreements"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 187-198.  

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the author): Negotiated justice is "the situation in which the criminal conflict is the object of a trade in the etymological sense of the term negotio, i.e. a debate between the parties to reach an agreement".

Thus, the French legislator has succumbed to globalized mimicry by creating the Convention judiciaire d'intérêt public (Public Interest Judicial Agreement), first in matters of probity and then in environmental matters. What is the nature of this deal of justice? Validated by a judge's order, it does not entail any declaration of guilt, has neither the nature nor the effects of a judgment of conviction and is not registered in the judicial record. Possible at the investigation stage as well as at the pre-trial stage, the Public Interest Judicial Agreement is original in that it makes it possible to avoid either the prosecutor's proceedings or the judge's wrath.

A detailed study of the agreements signed shows that in order to negotiate in the best possible way, the company can and must shape itself. The company will shape the facts of its agreement, shape its charge and, finally, shape its sentence. The article offers a concrete analysis of these three dimensions of corporate shaping to better approach understanding the legal nature of negotiated criminal justice agreements.

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► Full Reference: S. Scemla and D. Paillot, "La difficile appréhension des droits de la défense par les autorités de contrôle en matière de compliance" ("The supervisory authorities face difficulties to apprehend the rights of the defence in Compliance matters"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 241-249.

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the authors): Since 2016, French companies subject to the provisions of the so-called “Sapin 2” Law must implement eight stringent anti-corruption measures, such as a risk mapping, a whistleblowing procedure or a third-party due diligence procedure.

To ensure their compliance with these obligations, the Sapin 2 law created the Agence française anticorruption - AFA (French Anti-Corruption Agency), which had been assigned three missions: firstly, to help any person prevent and detect corruption; secondly, to control the quality and effectiveness of the anti-corruption programs deployed by the companies; and thirdly, to sanction any breaches, through its Sanctions Committee.

As pointed out by the French Conseil d’Etat, the powers devolved to the administrations have multiplied and became stratified. While the Conseil d'Etat suggests to improve both the conduct and the effectiveness of administrative controls by harmonising their practices and simplifying their prerogatives, it is urgent to remedy the numerous procedural failures that undermine the rights of defence.

In fact, the AFA exercises various powers when undertaking its controls. Some of these powers are not provided for by the Law, and most of them infringe fundamental rights and freedoms among which the adversarial principle and the freedom not to self-incriminate. For instance, the AFA does not necessarily draft minutes of the interviews it conducts, thus depriving the interviewee of the possibility to challenge the statements reported by the AFA to the Sanctions Committee.

From a more structural point of view, the scope of the AFA's mission is extremely broad. The Law allows the AFA to request the communication of "any professional document or any useful information", without defining the notion of usefulness. Also, the AFA considers that the entity cannot benefit from the legal privilege that would cover their documents, and considers that an entity who voluntarily hands over a document, without expressing any reserves, waives its right to the benefit of its legal privilege.

Apart from the severe consequences that could arise if another proceedings was to be initiated by a foreign authority, the concept of "voluntary handover" does not faithfully reflect the reality. Indeed, the controlled entities only cooperate under the threat of being prosecuted on the basis of an obstruction to the control, which compels them to communicate documents even when facing the risk of contributing to their own incrimination.

These many procedural deficiencies encountered during AFA controls must therefore be reformed, as recommended by the Conseil d’Etat, so as to require the authorities to take into account the rights of the defence.

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► Full Reference: J.-B. Racine, "Compliance et Arbitrage. Essai de problématisation" ("Compliance and Arbitration : Problematisation", in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 265-279. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

____

► The summary below describes an article that follows an intervention in the scientific manifestation Compliance et Arbitrage, co-organised by the Journal of Regulation & Compliance (JoRC) and the University Panthéon-Assas (Paris II). This conference was designed by Marie-Anne Frison-Roche and Jean-Baptiste Racine, scientific co-directors, and took place in Paris II University on March 31, 2021. 

In the book, the article will be published in Title II, devoted to: Compliance et Arbitrage.

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► Summary of the article (done by the author): Under the consideration of the "Compliance Juridictionalisation", it is necessary to study in the links between Compliance and Arbitration. The arbitrator is a judge, he is even the natural judge of international trade. Arbitration is therefore naturally intended to meet compliance which transforms the action of companies in an international context. However, the links between compliance and arbitration are not obvious. It is not a question of providing firm and definitive answers, but rather, and above all, of asking questions. We are at the start of reflection on this topic, which explains why there is, for the time being, little legal literature on the subject of the relationship between Compliance and Arbitration. It doesn't mean there aren't connections.  Quite simply, these relations may not have come to light, or they are in the making. We should research  the existing or potential bridges between two worlds that have long gravitated separately: Compliance on the one hand, Arbitration on the other. The central question is: is or can the arbitrator be a compliance judge, and, if so, how?

In any event, the Arbitrator is thus in contact with matters requiring the methods, tools and logic of Compliance. In addition to the prevention and suppression of corruption, three examples can be given.

• Arbitration has been facing economic sanctions (notably embargoes) for several years. The link with Compliance is obvious, insofar as texts providing for economic sanctions are often accompanied by compliance mechanisms, as in the United States. The arbitrator is concerned as to the fate he reserves in the treatment of the dispute with the measures of economic sanctions.
• Competition Law is a branch that came into contact with Arbitration from the end of the 1980s. The arbitrability of this type of dispute is now established and arbitrators apply it regularly. At the same time, Compliance has also entered Competition Law, admittedly more strongly in the United States than in France. The existence, absence or insufficiency of a compliance program aimed at preventing violations of the competition rules are thus circumstances which may assist the arbitrator in the assessment of anti-competitive behavior.
• Environmental Law is also concerned. There is environmental Compliance, for example with regard to the French law of March 27, 2017 on the duty of vigilance. Companies are thus responsible for participating in the protection of the environment, by internalizing these concerns in their internal and external operations (in their sphere of influence). As soon as an arbitrator is in charge for settling a dispute relating to Environmental Law, the question of the relationship to Compliance, from this angle, naturally arises.

It is therefore the multiple interactions between Compliance and Arbitration, actual or potential, which are thus open.

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► Full Reference: A. Linden, "Motivation et publicité des décisions de la formation restreinte de la Commission nationale de l’informatique et des libertés (CNIL) dans une perspective de compliance" ("Motivation and publicity of the decisions of the restricted committee of the French Personal Data Protection Commission (Commission nationale de l'informatique et des libertés-CNIL) in a compliance perspective"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 235-239. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the Journal of Regulation and Compliance): In the event of a breach of the personal data protection rules, the restricted formation of the French personal data protection Commission (CNIL) pronounces fines, injunctions of "compliance" or calls to order. It can order the publication of these measures, which can be contested before the French High Administrative supreme court (Conseil d'État).

It is essential that these decisions be justified, not only in order to respect this principle of law but also concretely to obtain the public concerned, being very heterogeneous, understand them, the educational role of the CNIL also being applicable.

The principle of publicity is handled with nuance, the data controllers often requesting a closed door and, in fact, very few public attending the hearing. The publicity of decisions is in itself a sanction. The publication may moreover not be total or may only have a time, anonymization often allowing the balance between necessary pedagogy and preservation of interests, the CNIL taking great attention to the very modalities of publication, even if it cannot control the circulation and the media use which is then made of it.

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► Full Reference: J. Jourdan-Marques, "L’arbitre, juge ex ante de la compliance ?" ("The arbitrator, ex ante judge of compliance?"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 317-334. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

____

► The summary below describes an article which follows an intervention in the scientific manifestation L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance ("The company instituted Judge and Prosecutor of itself by Compliance Law"), co-organized by the Journal of Regulation & Compliance (JoRC) and the  Faculty of Law Lyon 3. This colloquium was designed by Marie-Anne Frison-Roche and Jean-Christophe Roda, scientific co-directors, and took place in Lyon on June 23, 2021.

Due to the very close proximity of the content of this article to a scientific manifestation that was held previously, in the same series of colloquia, manifestation on Compliance and Arbitration, designed by Marie-Anne Frison-Roche and Jean-Baptiste Racine, and which took place in Paris on March 31, 2021 in Paris, it was decided with the author and the scientific managers of the scientific events concerned to publish the article not in Title I of the book, devoted to the topic of the Company instituted Judge and Prosecutor of itself by Compliance Law, but in Title III, devoted to the topic of Compliance and International Arbitration.

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► Summary of the article (done by the Journal of Regulation & Compliance) :  The article begins with a long introduction relating to the general relationship between Compliance and Arbitration.

Then the author in a first part examines the place of the Arbitration upstream of the occurrence of the dispute, aiming at the relations of the company in its organization with other companies for its economic activities, for example commercial agents. The author examines the way in which Arbitration can resolve difficulties which arise between them, including when these issues are otherwise apprehended by Compliance Law and the institutions in charge of it, in particular because of the facts of corruption are alleged and the fact is alleged by the debtor himself when payment has not yet been requested by the creditor. The legal question then becomes whether or not there is a "dispute".

Being even further upstream, the author takes the hypothesis of the adoption of a compliance program in which recourse to arbitration would be inserted by the Company, insertion which could then be at the origin of exemption from criminal liability, an arbitration award being able to produce such an effect if it is recognized in the legal order. 

The second part of the article considers Arbitration in the absence of multiple parties, which could correspond to the acts issued by the Oversight Board of Facebook, this kind of tribunal and judge not being seized by parties to a litigation. It might be adequate to qualify this mechanism as an arbitration, even if this qualification is difficult to retain. In any case, if we did so by admission that a unilateral request gives rise to a jurisdictional mission, there should be guarantees surrounding such institutionalization. They can go through specific bodies for Compliance cases, outside or within existing arbitration institutions, which must then become the driving force in the matter. In addition, the choice of arbitrators should undoubtedly go through the institution itself so that impartiality remains unchallenged and profiles of arbitrators would be truly varied. The procedure would also have vocation to be inflected because of the absence of real litigation, justifying the adjustment of the adversarial principle (in the narrow sense of this one, linked to the debate) in particular by the intervention of amicus curiae and to avoid the fraud through arbitration and in procedure. In the absence of an adversary, the procedural office of the arbitrator could be reconsidered: without modifying the terms of the case, it would be appropriate for the arbitrator to have more power to decide on the adequate measures to be taken to remedy the non- conformity with compliance requirements. Finally, publicity seems to the author essential so that the arbitration is not instrumentalised by the parties, publicity which could also concern the debates and the documents produced. These admittedly very high requirements would in return give great credibility to the resulting award, justifying its scope, and one could consider labeling such a result, a label that the company could claim. 

The author concludes that these transformations would move away so much from Arbitration that it would denature it, in particular because of the absence of litigation, but this allows Companies to outsource the management of the more and more heavier responsibility engendered by Compliance Law, by offering Compagnies the assistance of a judicial authority, as soon as the procedural guarantees are reinforced.

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► Full Reference: S. Merabet, "La vigilance, être juge et ne pas juger" ("Vigilance, to be a judge and not judging"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 199-209. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the author): Vigilance presents two diametrically opposed dangers. The company is caught in the crossfire. On the one hand, there is a risk that it exercises its role at a minimum, so that the obligations imposed on it are ineffective, thereby risking its own liability.   On the other hand, the danger is that the company oversteps its role and takes the place of the Judge. Does Vigilance always present the same dangers? Does it systematically involve the same role of the company? To be vigilant, is it to judge? The answer to these questions depends on the content of the obligations involved in Vigilance. However, these now seem very diverse.

How to distinguish between the various duties of Vigilance? A first approach could consist in considering a formal identification which leads to distinguish stricto sensu Vigilance, that which is envisaged by the French so-called "Sapin 2" law and identified as such, and the related obligations, such as for example the duty of moderation of companies on social networks, which without being baptized "duty of vigilance", nevertheless come close. The extension of Compliance obligations blurs the line between what exactly falls under Vigilance and what not. A more substantial approach should be taken to consider the degree of control exercised by the company. Understood in this way, it is possible to distinguish two categories: Negative Vigilance, which implies the identification of a risk, and Positive Vigilance, which even more supposes the neutralization of the risk. The first assumes a limited role for the company, while the second encourages it to act positively, even before an Authority has spoken. In this case, the role of the company is closer to that of the judge. That shows that all the obligations of vigilance cannot therefore be understood in a unitary manner.

As soon as the company is led - if not to take the place of the Judge - to act before the Judge even has the opportunity to pronounce himself/herself, then it seems legitimate to supervise the implementation of the company's duty of Vigilance, through a form of proceduralisation of Compliance. The company, as its employees or partners, would benefit from more Vigilance supervision. Insofar as all Vigilance obligations do not call the same role of the company, it is necessary to consider guiding principles of Vigilance, more or less intense depending on whether it is Negative or Positive Vigilance. 

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► Full reference: M.-A. Frison-Roche, "Ajuster par la nature des choses le Droit processuel au Droit de la Compliance" ("Adjusting by the nature of things General Procedural Law to Compliance Law"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 251-262. 

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📝read the article (in French)

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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► The principal elements of this articles had been presented during the scientific manifestation held on September 23, 2021, at Dauphine University in Paris, coorganised by the Journal of Regulation & Compliance (JoRC) and the Institute Droit Dauphine. 

In the book this article is placed in the chapter II about the General Procedural Law in the Compliance Law.  

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► Summary of the article (done by the Journal of Regulation & Compliance): Procedural law is an invention, essentially due to professor Motulsky, going well beyond the gain that one always has in comparing types of procedures with each other. As he asserted, there is Natural Law in General Procedural Law, in that as soon as there is the Rule of Law Principle there cannot be, whatever the "procedure", even the "process" such and such way of doing things: for example, to decide, to seize the one who decides, to listen before deciding, to contest the one who has decided.

General Procedural Law therefore depends on the nature of things. However, Compliance Law organizes things in a new way. Therefore, both the simple and iron principles of General Procedural Law creep in where we do not expect them at first sight, because there is no judge, this character around whom ordinary procedures fit together. The principles of General Procedural Law are essential in companies. Even if the regulations do not breathe a word about it, it is up to the Judges, in particular the Supreme Courts, to recognize this nature of things because on this effect of nature that  General Procedural Law is built: when compliance mechanisms oblige companies to strike, General Procedural law must oblige, even in the silence of the texts, to arm those who can be hit, even stand up against devices that would set aside too much these defenses that are easily considered contrary to efficiency (I).

But because it is a question of making room for this nature of the things of which the Rule of Law Principle entrusts the custody to the Judge and the Lawyer, the General Procedural Law must also adjust itself to what the extraordinary new branch of Law Compliance Law is. Indeed, Compliance Law is extraordinary in that it expresses the political pretention to act now so that the future will not be catastrophic, by detecting and preventing the realization of systemic risks, or even that it is better, by building effective equality or real concern for others. Because it is the Monumental Goals that defines this new branch of Law, a disputed systemic issue, possibly disputed by several parties before a judge, the procedural principles used by the court must be broadened considerably: they must then include civil society and the future (II).

General Procedural Law thus naturally acquires an even more place than in the classic branches of Law since on the one hand it imposes itself outside of trials, particularly in companies and on the other before the courts it involves people who had hardly any place to speak and thinks themselves, especially the systems entering the "causes" of Compliance now debated before the Judge.

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► Full Reference: E. Silva-Romero and R. Legru, "Quelle place pour la Compliance dans l'arbitrage d'investissement ?" ("What place for Compliance in investment arbitration?"), in M.-A. Frison-Roche (dir.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 281-293. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► The summary below describes an article that follows an intervention in the scientific manifestation Compliance et Arbitrage, co-organised by the Journal of Regulation & Compliance (JoRC) and the University Panthéon-Assas (Paris II). This conference was designed by Marie-Anne Frison-Roche and Jean-Baptiste Racine, scientific co-directors, and took place in Paris II University on March 31, 2021. 

In the book, the article will be published in Title II, devoted to: Compliance et Arbitrage.

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► Summary of the article (done by the Journal of Regulation & Compliance): The authors emphasize the new and growing place of Compliance in International Arbitration, particularly in the requirement of respect for ethical values, since arbitrators can implement Ethics, sometimes lacking in international trade, or even must put their power only at the service of investors who respect the Rule of Law.

Thus, Compliance is deployed through the classic control by the arbitrators of the legality of the investment, which applies both to the establishment of the treaty itself and to the investor. In a more recent way, the arbitrator can control about an investment project a sort of "social license to operate" of the investor, concept related to the social responsibility of the companies, appeared for the protection of the peoples indigenous. Moreover, Compliance can justify a substantial assessment by the arbitrator of the effective respect of the human rights and the environment protection via an investment treaty, the State party remaining able to act for the effectiveness of these concerns.

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► Full Reference: M.-A. Frison-Roche, "Conforter le rôle du Juge et de l'Avocat pour imposer la Compliance comme caractéristique de l'État de Droit" ("Reinforce the Judge and the Attorney to impose Compliance Law as a characteristic of the Rule of Law"), in M.-A. Frison-Roche (dir.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 29-55. 

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► This article is the introduction of the book.  

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📝read the article (in French)

____

🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks 

____ 

📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

____

► Summary of the article (done by the Journal of Regulation & Compliance): One can understand that the compliance mechanisms are presented with hostility because they seem designed to keep the judge away, whereas there is no Rule of Law without a judge. Solid arguments present compliance techniques as converging towards the uselessness of the judge (I). Certainly, we come across magistrates, and of all kinds, and powerful ones, but that would be a sign of imperfection: its ex-ante logic has been deployed in all its effectiveness, the judge would no longer be required... And the lawyer would disappear so with him...

This perspective of a world without a judge, without a lawyer and ultimately without Law, where algorithms could organize through multiple processes in Ex Ante the obedience of everyone, the "conformity" of all our behaviors with all the regulatory mass that is applicable to us, supposes that this new branch of Law would be defined as the concentration of processes which gives full effectiveness to all the rules, regardless of their content. But supposing that this engineer's dream is even achievable, it is not possible in a democratic and free world to do without judges and lawyers.

Therefore, it is imperative to recognize their contributions to Compliance Law, related and invaluable contributions (II).

First of all, because a pure Ex Ante never existed and even in the time of the Chinese legists, people were still needed to interpret the regulations because a legal order must always be interpreted Ex Post by who must in any case answer the questions posed by the subjects of law, as soon as the political system admits to attributing to them the right to make claims before the Judge. Secondly the Attorney, whose office, although articulated with the Judge's office, is distinct from the latter, both more restricted and broader since he must appear in all cases where the judicial figure puts himself in square, outside the courts. However, Compliance Law has multiplied this since not only, extending Regulatory Law, it entrusts numerous powers to the administrative authorities, but it also transforms companies into judges, in respect of which the attorneys must deal with.

Even more so, Compliance Law only takes its sense from its Monumental Goals. It is in this that this branch of the Law preserves the freedom of human beings, in the digital space where the techniques of compliance protect them from the power of companies by the way that the Compliance Law forces these companies to use their power to protect people. However, firstly, it is the Judges who, in their diversity, impose as a reference the protection of human beings, either as a limit to the power of compliance tools or as their very purpose. Secondly, the Attorney, again distinguishing himself from the Judge, if necessary, reminds us that all the parties whose interests are involved must be taken into consideration. In an ever more flexible, soft, and dialogical Law, everyone presenting himself as the "advocate" of such and such a monumental goal: the Attorney is legitimate to be the first to occupy this place.

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